[This is based on the final draft on my hard disk, and may differ in detail from
the published version]

Originally published in Social Philosophy & Policy, volume 1 (1983), published
by Cambridge University Press. Copyright 1983 by the Social Philosophy and Policy
Foundation. Reprinted with the permission of the Social Philosophy and Policy Foundation.
Any reproduction, copying, downloading, or use of any kind of this material is a
violation of copyright, and such uses must first receive written permission by contacting
the Social Philosophy and Policy Center, Bowling Green State University, Bowling
Green, Ohio 43403.

In the article I am responding to here, Baruch Brody had offered a theory of initial
acquisition which started with the idea that in some circumstances it was proper
to violate rights--but compensation was then owed to the victim. The appropriation
of previously unowned land was seen as such a proper violation.Compensation was owed
to the people who were made worse off because the land was no longer available as
common property--but only to the extent that they had been made worse off on net.
For many, perhaps most, people, the large gains from the existence of private property
in land (whether or not they owned any--they still benefit as consumers of what the
land produces) would outweigh any loss, so not compensation would be owed. The implication
was a justification for a (very limited) system of welfare transfers.

Comment on Brody

Note on Interpretation

It became clear in the discussions at the conference at which Professor Brody's paper
was given that he and I had slightly different interpretations of his paper. He apparently
regards the rights violations to be justified (having to do with the initial appropriation
of land) as events in the distant past, and any resulting compensation as being due
to our contemporaries only as heirs of people injured in the distant past. To me,
one of the attractions of his analysis is that it allows one to dispense with such
tenuous arguments and consider rights violations occuring at this very moment, and
the compensation due for them. If every individual has the right to use all uncreated
resources, then when I use force to keep you out of my living room I am violating
your rights; although (according to Professor Brody) that may be an appropriate rights
violation, it still imposes on me the obligation to compensate you. These comments
were originally written on the assumption that Professor Brody intended the argument
to be interpreted in this way; since I believe it is a more interesting argument
in that form than in the form apparently intended by its author, I will maintain
that interpretation throughout my comments.

Critique

Professor Brody's solution to the problem of Lockean entitlements
is ingenious and in some ways attractive, but I find it unsatisfactory in the form
presented here. The problem is that, in spite of the author's claims to the contrary,
it seems impossible, in principle, to decide how much compensation who is entitled
to. Consider the situation of a single indigent person. After reading the article
he argues as follows. "If I am not bound by the obligation to respect property
rights I am entitled to use any material I can reach. I can break windows in order
to use the material they are made out of. I can trample on crops. I can break down
doors in order to use that portion of the surface of the earth blocked by the rooms
they protect. It follows that the gain from the violation of my rights alone, supposing
other claimants to already have been satisfied, is the difference between the income
people have (after paying off other claimants) and the income they would have if
I went around freely exercising those rights. I could, at a conservative estimate,
do ten million dollars a year worth of damage merely by acting on my rights to the
uncreated parts of the world around me. Being a modest man, I am willing to accept
ten percent of that as my compensation for not doing so. Professor Brody suggests
that the appropriate compensation be based on what the parties would be willing to
agree to in a hypothetical negotiation. A home owner who was told that I was legitimately
entitled to inflict a thousand dollars a year worth of damage to his home would be
delighted if I agreed not to do so for a mere hundred dollars a year."

Since this argument can be made by everyone, indigent or not, it implies that each
of us is entitled to claim a million dollars a year from everyone else, which seems
an unreasonable conclusion.

To avoid this, we must somehow divide up the gains from civilization first between
those Professor Brody wants to tax and those he wants to subsidize, and second among
the latter group. The only obvious way to do this is in terms of marginal product--which
is most naturally measured by prices. This brings us back to Locke's argument about
how much of the value of the final product comes from the commonly owned input. I
made a very crude estimate many years ago that the return on unproduced factors of
production was at most a few percent of U.S. national income. One interpretation
of Professor Brody's argument might be that that few percent is in some sense common
property (of rich and poor alike) and that justice requires, say, a two percent tax
on income used to finance a demogrant. Professor Brody might reply that in addition
to the few percent going for natural resources we must also credit the common pool
with the vast increase in the marginal product of labor due to the (rights violating)
institution of private property; if, after all, there were no private land, we would
be poorer by far more than the current rental value of all land. I reply that if
so we should also credit to the return due to labor the vast increase in the marginal
product of natural resources due to the actions of labor; if land were all held in
common, so that nobody had an incentive to apply his labor to it, its total product
would be far less than its current rental value. While I am not sure I can justify
crediting every factor with its marginal product within the structure of his argument,
it seems clear that the alternative leads to an absurd result--total claims are very
much larger than total product if each factor is allowed to claim average rather
than marginal product.

Before ending my critique, I would like to raise two further and somewhat less fundamental
issues. One of the attractive features of Professor Brody's argument (as I interpret
it) is that the relevant considerations are current--transfers are being made to
the indigent not in repayment of an injury done to their ancestors by the ancestors
of the non-indigent but in response to an injury being done to them by (among others)
the current non-indigent. This allows us to ask, not what the condition of the indigent
individual would have been had private property never been instituted (answer: that
particular individual would not exist, since history would have been different),
but what the condition of that individual would be if property were suddenly abolished.
This makes the theory even less egalitarian than its author seems to intend. A cripple
or blind man in a state of nature would presumably starve to death rapidly; a man
who has the talents necessary for a hunter gatherer civilization but no ability to
get along in a machine civilization would do fairly well. It might well follow from
the argument that the blind man should receive no transfer--he is already vastly
better off than he would be--while the "natural primitive" is entitled
to a considerable sum.

The second issue has to do with the implications of applying the argument on a world
scale. One could claim that the indigent in India, if there were no private property,
would have no way of injuring the property owner in america, even if he were free
to use the common property--he could not get there to use it. To that extent the
approach seems to justify the "nationalist" spirit of most discussions
of redistribution (i.e. their tendency to talk about redistribution from the American
rich to the American poor, instead of from all Americans to the Indian poor), which
seems hard to justify on most other grounds. On the other hand it implies that Mexicans,
at least those living near the Rio Grande, are entitled to U.S. Welfare payments.
If they got them, the population of Mexicans living in those areas would increase.
Under Professor Brody's arguments, it seems that the new migrants would also be entitled
to the payments; given that they are now within grabbing range of unproduced property
that has been propertized, the refusal to let them have it currently violates their
current rights, hence requires compensation. The consequences of implementing such
a system seem unattractive, at least from a utilitarian standpoint.

While I believe I have shown that there are serious difficulties with Professor Brody's
solution to the problem of initial entitlements, that does not imply that it should
be rejected. The problem is a difficult one; Professor Brody has himself demonstrated
that there are serious difficulties with alternative solutions. Perhaps the most
hopeful course is to try to develop his solution further; a more extensive development
(perhaps in his forthcoming book) might answer the sorts of objections I have raised.

To reject this particular approach one needs an alternative. While I do not have
anything to offer that is as fully developed as Professor Brody's contribution to
the discussion, I do have some ideas concerning alternative ways of resolving the
problems inherent in the Lockean argument.

3. Alternative

I begin, unoriginally, with two kinds of property--private property
(initially one's own body) and common property. The rule with regard to private property
is that I can control it and you cannot injure it. The rule with common property
is that anyone can use it, subject to the rule about private property. Before considering
problems of appropriation and the extension of private property, let us first consider
the implications of this simple situation.

You wish to stand on a certain piece of common property. I am there already. You
have the same right as I do to stand there, but you do not have a right to move or
injure me, hence you cannot exercise your right to stand there without acting
unjustly. I have not appropriated the land I am standing on in the usual sense of
the term, but I have "de facto" appropriated it for as long as I stand
there, not by altering the nature of your right to the land but by making it impractical
for you to exercise it without violating other rights.

You have (somehow) acquired a rifle and ammunition, and wish to engage in target
practice. The whole world is your target range. But you cannot fire in my
direction--because you do not have the right to injure me. My existence and my present
location decrease the value of your rights to you without violating or reducing those
rights. You still have a right to shoot anywhere you like. You do not have a right
to shoot me. If in some ingenious way you can exercise the former right without violating
the latter prohibition (for example, by using a weapon shooting harmless water drops
or a radar controlled gun which will not go off when it is pointing exactly at me)
you may do so.

The point of these examples is to show how Professor Brody's distinction between
harming someone and violating his rights is most naturally applied in the state of
nature. My exercise of my right (not to be shoved or shot) reduces the value of your
rights to you without violating or reducing the rights themselves.

Having established the conceptual framework, we can now use it to try to justify
the transition from the state of nature. I plant wheat in a field. You come and want
to plant wheat in the same field. I point out to you that the field is common property
which you are welcome to use, but the wheat I have planted is my property (the result
of my labor in gathering seeds, watering them so they would sprout, etc.) and you
do not have the right to disturb it. Any way you can figure out to exercise your
right to the field without violating my right to the wheat is fine with me.

This example can, perhaps, be expanded into a full justification for "property
rights" in uncreated property. Seen from this viewpoint the original right of
freedom of action need never have been infringed. When I "mix" my labor
with the land I make it inconvenient for you to use the land without violating my
right to my labor. If you figure out a way of doing so, fine. You still have the
right of freedom of action, and that right is still limited, as it always was, by
my right not to have my private property violated.

This approach to the problem does not, like Professor Brody's, justify redistribution.
It does help answer some specific questions about the nature of property rights.
In particular, it implies that mixing my labor with the land in one way does not
give me any right over uses of the land which do not affect my labor. Farming the
land gives me neither the mineral rights nor the right to forbid (harmless) trespassers.

While this brief exposition of my alternative is hardly sufficient either to satisfy
critics or to work out all of its implications, it does, I think, show how Professor
Brody's central criticisms of the Lockean approach can be rebutted. In my system
"appropriators" do not own the land with which their labor has been mixed--if
the labor is ever entirely separated from the land, others can again use it freely.
Even if it is not separated, others can use it as long as they are not injuring the
intermixed labor by so doing. Appropriators need not leave others "as much and
as good;" under Professor Brody's own distinction (p.6) the others have been
harmed but their rights have not been infringed upon.

4. Additional Problems

In addition to the problems of justifying the initial appropriation
discussed by Professor Brody in his paper and, more briefly, by me in this comment,
there are two other serious problems with his justification, my justification, or
most other variants on Lockean appropriation. The first is defining what "labor"
is and what it means to "mix it" with things. The seeds of the wheat I
plant (or at least the seeds from which that wheat was bred) come ultimately from
the commons. So does the water I use to irrigate the wheat. So does the energy I
use to carry the water--it originated in the food I gathered from the commons. What
have I added? This question ultimately goes to the question of in what sense man
is distinct from nature. That is a good deal further than I intend to go in this
comment, but it is necessary to point out the problem--which applies as much to Professor
Brody's approach as to mine.

The second difficulty with my approach, and many others, is the problem of defining
"injury." Robert Nozick, in Anarchy, State and Utopia , asks whether,when
he dumps a can of tomato soup in the pacific ocean, he acquires ownership over the
ocean (having mixed his tomato soup with it) or merely loses the soup. My answer
is that he has merely lost his soup. My justification is the assertion that my swimming
somewhere off Bali, while it may move molecules of his soup around, does not injure
him; the molecules are no more use to him before I move them than afterward. This
answer depends on some, in principle objective, measure of injury; Nozick could claim
that he attaches enormous subjective value to having the molecules exactly where
they were before I went swimming, and that I therefor owe him compensation of a million
dollars. My reply would be that I do not believe it.

This, too, is a problem which goes beyond both the issue being discussed and the
range of this comment. It is worth noting that the same issue arises with ordinary
civil law; how, in principle, do we decide what compensation is due for a rights
violation? Nozick could, after all, claim that he attaches enormous value to having
every blade of grass on his lawn undisturbed, and that an accidental trespasser therefor
owes him a million dollars.

I have two purposes in bringing up these two problems. The first is to raise what
I regard as interesting questions. The second is to make it clear that the alternative
I offer is intended to solve only one part of the Lockean puzzle. I have offered
an explanation of why and in what sense "mixing my labor with the land"
gives me "ownership" of the land. I make no claim to have explained what
labor is or in what sense it becomes so mixed that noone else can use the land without
violating my property right in my labor.